Michael W. Hoskins
October 28, 2009
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Juvenile Justice

Bonaventura/PayneLake Superior Judge Mary Beth Bonaventura recently found herself doing what no other Indiana juvenile judge had done previously. She phoned the state’s Department of Child Services and asked Director James Payne, himself a former juvenile court judge, for permission to place a child outside Indiana. He reviewed the case and granted her request.

But that instance isn’t what bothers Judge Bonaventura or her colleagues throughout the state; it’s that they’re forced to seek permission at all.

An unexpected, last-minute change in a bill during the 2009 special session stripped away much of the juvenile judges’ decision-making discretion for placements outside Indiana, and now all three government branches are reacting to how and why that happened and whether it strengthens or hinders Indiana’s juvenile justice system.

“This used to be a judicial decision, but now it’s an executive department decision,” said Indiana Court of Appeals Chief Judge John Baker, who recently sat as a member of the legislative Commission on Courts as it examined this issue. “I wasn’t aware it was broken, or at least that there was a discussion outside the judiciary that it was broken.”

Special session surprise

With PL 182-2009(ss), Section 387, lawmakers amended Indiana Code §31-37-19-3(f) to require DCS recommendation or approval for any out-ofstate placement, or else the county must pay for placement. The change came after the Indiana Supreme Court in April ruled against the state agency and gave more deference to juvenile judges in making placement decisions when there’s a dispute about who should pay. Taking its case directly to the General Assembly, the DCS asked the lawmakers to tweak state statute and give it more control.

It's not the rightThe change happened without public discussion and surprised the judges, who were still reeling from sweeping statutory changes made a year earlier giving the DCS more authority over juvenile justice decisions and shifting some funding to the state.

The gamut of issues came up during the two Commission on Courts meetings in October, where all sides came together to discuss the issues and some even pointed out potential constitutional issues that could arise.

“It’s arrogant for judges to say or think that only judges can make those decisions and not the executive branch, but our state’s policy has been to leave it up to the judges and not have them second-guessed by the executive branch,” Chief Judge Baker said, making an observation in his role filling in for Chief Justice Randall T. Shepard.

Speaking about her experience in Lake County, Judge Bonaventura said all placements are about what’s best for children and families, and the judges work to keep juveniles inside the state as much as possible, as long as needs are met. But she doesn’t like the idea of singling out and treating juveniles differently based on placement. Doing so, she said, raises potential constitutional concerns â?? a separation of powers violation and questions about how the unrelated juvenile justice provision was lumped into a massive budget bill.

John PayneTippecanoe Juvenile Judge Loretta Rush, who chairs the Indiana Supreme Court’s Juvenile Justice Improvement Committee, told the interim legislative panel that all of the recent statutory changes negatively impact their ability to do their job effectively.

“These decisions (that judges make) weigh heavily on us, and it sets our juvenile justice system backward to take away this judicial discretion and place it with a state executive agency,” she said.

Opposing sides

Several commission members voiced their frustration about the last-minute change and said they didn’t know about the provision until it became law. After hearing from a handful of unhappy juvenile judges, the committee voted overwhelming to recommend that the General Assembly repeal that provision during the upcoming session.

Rep. Matt Pierce, D-Bloomington, called the revision a “fiscally-based decision that wasn’t thought through.” Other lawmakers agreed and voiced similar concerns, saying they trusted the decisions Indiana juvenile judges have made and that there hasn’t been any rash of out-of-state placements about which the state should be concerned.

Chief Judge John Baker“I was totally unaware this was in the budget, and there ought to be a do-over,” said Sen. Tim Lanane, D-Anderson. “This goes very much to the independence of our judiciary and who’s in the best position to decide what’s in the best interests of a child. I hope there would be extensive debate on this.”

The DCS director defended the law change that he’d specifically asked for during the special session, and Payne said the rationale is focused more on best practices than money.

“I’m not here to talk about money, but money is a part of this,” he told committee members. “We have the treatment programs here to adequately serve their needs, and keeping children close to home is a best practice and something this state can and should support.”

The agency’s main priority is to keep children close to home and “engage families” as much as possible, Payne said. Outof-state placement is used as a last resort, and research shows Indiana has the capacity to keep virtually every child here.

Nationally, many states are turning away from out-of-state placements, and more than half have limited them in order to keep juveniles close to home, Payne said. He presented lawmakers with a 2008 report from the non-profit group known as IARCCA, which describes itself as an Association of Children & Family Services, saying Hoosier judges have many in-state placement options and there’s a 30 percent bed capacity that remains open. He said Indiana could use existing resources to keep virtually every child within the state and serve them adequately.

But judges disputed the report, some saying that it doesn’t take into consideration that those facilities often decline to take a particular juvenile when they are asked to do so by a judge.

The decissionsDespite Payne’s insistence that judges can still make out-of-state placements without DCS approval, juvenile judges say their hands are tied because it’s a “pay to place” setup: If they don’t consult the DCS first, then the cash-strapped counties would have to find money to pay for the placement. That is difficult in tough economic times, but especially since another provision of the 2008 law change took away and transferred to the state the local county fund previously used to pay for those placements and services.

Judge Rush said she recently asked her county council to set aside money and devote a specific line item in the budget to use when the juvenile court disagrees with the DCS, but the county refused to do that.

St. Joseph Juvenile Judge Peter Nemeth criticized how the DCS operates and continues getting more authority to call the shots on juvenile offenders, delinquents, and Children In Need of Services. The agency, he said, often seems as though it’s metaphorically throwing darts at a dartboard without knowing any particulars about a child or family, and disregards recommendations by the key players and even its own local caseworkers.

“It’s not the right thing to do, and it certainly interferes with judges doing their job,” he said. “They want to look at a piece of paper to make decisions. ... Is that the way we want our justice system to operate for our kids and their families?”


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues